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Sunday, March 25, 2007

People have asked me recently how I reconcile my being Muslim with the work I am doing through Article 11 and as a lawyer in the area of civil law-Islamic law. Some have even asked desperately "Why?!" And when that does not satisfy, there are those who resort to name calling. Two days ago, in what has become a common refrain, I was once again referred to as "syaitan".

So, why?

Firstly, I do not see religion being involved at all. The issue is one of law. If I disagree with the suggestion that the syariah courts have jurisdiction over certain matters, that is not a disagreement with the principles of Islam. As a lawyer, I apply the law as it is provided. I cannot bend the law, nor should it be bent. Under our system all of us are guaranteed an equal right to access impartial and objective justice. Not that that is an unacceptable thing.

Secondly, in Islam everyone - muslim or otherwise - is to be treated justly. Justice is equally impartial and objective. Justice meted out through a syariah court does not make it that much more just than that through a civil court. Justice is justice. It looks to substance, not form. There is no such thing as Islamic justice and non-Islamic justice.

In that vein, I do not see any difficulties reconciling what it is I do with the Islam that I know and cherish. The religion that I know as Islam does not enjoin oppression of the disadvantaged nor persecution. The Islam that I know enjoins compassion, mercy and above all justice for all of God's creations.

So does the Constitution. It is a compact which all of us must honour. The traditions of the Holy Prophet illustrate the principle that justice is justice. A compact which serves the good of the community and the aims of fairness, even if arrived at by non-Muslims, must be honoured. As must the law. To say otherwise is to invoke the religion to countenance a wrong. That is wholly reprehensible.

As a human I will not tolerate an injustice. As a Muslim I am obligated to fight it to the end.

It bears repeating. The objectives of Article 11 are nation building objectives. The coalition is looking at more ways in which we can highlight the issues involved and the objectives. The short lived forums kick started the process, the on-line petition is still running (go here please and sign on if you have not) and the videos are on-line (see them here, download and share them round).

Any ideas on how to bring more awareness and understanding? These do not have to be confined to Article 11. Civil society (that means you) should really be looking at ways in which you can build on what has been achieved already or other initiatives of a similar nature. The Constitution belongs to all of us, just as each of us is entitled to Justice and the Rule of Law.

Thursday, March 22, 2007

I would have thought that with all that came to light last year – through the Article 11 initiative, and the controversy surrounding it, and the various cases that went to court from Murthi to Lina Joy as well as those that did not make it court, Rayappan for instance – State Authorities and the Judiciary would have begun to appreciate that the Constitution was being hijacked and the Rule of Law being undermined, in part by ill conceived decisions on the part of the latter.

I would have thought that it was obvious that the trend of decisions being handed down by the Civil Courts, including the Court of Appeal and the Federal Court, were doing more damage to the fabric of our nation than any other element, barring corruption and mis-governance.

It seemed to me that once the cabinet intervened over Rayappan and a more uniting form of Islam, rather than divisive, was being propounded by all concerned, greater constitutional understanding and constitutionalism were to be the order of the day.

I was wrong.

Take a look at a cross-section of cases that have come before the Courts in the last 3 months.

Case 1

On December 28th 2006, I appeared for a Hindhu lady, X, in the Children’s Court. The Children’s Court is a specialized court dealing with matters affecting children under the Child Act. The Child Act was a law put in place to consolidate and amend the laws relating to the care, protection and rehabilitation of children to fulfill obligations taken on by the Malaysian Government in acceding to the UN Convention on the Rights of the Child.

The paramount consideration of the Court in the exercise of its powers is the best interests of the child or children concerned. The powers under the Child Act as such go to the welfare of children. The Act empowers the court to exercise powers necessary to ensure that a child, or children, are kept safe.

X was married to a Chinese man. She bore him 3 children. A short while ago, he married a Malay woman, someone who X and the children were familiar with. Though he converted to Islam for that purpose, the 3 children did not. At some point after the marriage to the Malay woman, he arranged for the children to visit him for the school holidays. Thereafter they remained with him, this decision having been arrived at without X having been consulted. X managed to see them from time to time.

Unbeknownst to my client, her husband passed away and some 12 days after, the children were converted into Islam. The conversions were effected without the knowledge and consent of my client. All 3 children were under the age of 18.

The step-mother then refused to allow the children to return to X. X took out custody proceedings in the High Court. The High Court granted X custody. Soon after, the Majlis Agama applied to intervene into the High Court proceedings and set aside the custody order. The Majlis contended that the children were Muslims and the High Court as such did not have jurisdiction. This was the first X had any indication of the conversions. X is taking steps to challenge the conversions.

At about the same time, the Welfare Department received an anonymous tip-off about the 3 children suffering emotional abuse at the hand of their natural mother, X. This was despite the 3 children not having lived with X for a significant period before the tip-off. The 3 children were taken into protective custody by the Welfare Department from their step-mother and placed in a welfare home. The Welfare Department obtained an urgent ex-parte Order from the Children’s Court for this purpose.

Under the Child Act, the Children’s Court is required to then consider its decision more thoroughly with the benefit of expert reports and a report by the Welfare Department in a hearing. It is at this hearing that I appeared for X, along with her very capable and committed solicitor, Mr K Shanmuga.

It must be borne in mind that the right of natural parents to guardianship and custody is a constitutionally entrenched right, reinforced by statutory law. This does not mean that the State is without powers to intervene where necessary. This is done trough the Courts which are recognized as having a protective jurisdiction over children, all children being wards of the court. The Court can make orders giving custody and guardianship to persons other than natural parents where such orders are necessary to secure the best interests of the child. Were it to be otherwise, children would be left in the control of abusive or grossly neglectful parents, and suffer for it. As one can readily appreciate, this is not a power that is easily invoked and the standard of proof is a high one. Where this power is provided for under statute, the necessary elements must be made out.

In the case of X, the contention of the Welfare Department was that there was emotional abuse, a ground provided for under s17(1)(h), Child Act which reads:

“A child is in need of care and protection if-

there is such a conflict between the child and his parent or guardian, or between his parents or guardians, that family relationships are seriously disrupted, thereby causing him emotional injury;”

Emotional injury is defined as “substantial and observable impairment of the child's mental or emotional functioning that is evidenced by, amongst other things, a mental or behavioural disorder, including anxiety, depression, withdrawal, aggression or delayed development

It was as such necessary for the Welfare Department to produce evidence to show that there was a substantial and observable impairment of the 3 children’s mental or emotional functioning. The Welfare Department did not produce any such evidence. It relied on a report by a pediatrician who declared that the children were not physically injured nor was there any observable emotional injury. A child psychologist’s report was not furnished.

The step-mother was represented. The Children’s Court was empowered to give temporary or permanent custody to any party the Children’s Court thought fit. Counsel for the step-mother emphasized the fact that the children were muslim. In response, I argued that the status of the children as muslims was premised on a wrongful conversion as they were minors and the consent of X had not been obtained as required under the Constitution (this is a settled principle of law, decided by the Supreme Court in a case referred to as In Re Susie Teoh). In any event, I argued, the issue of their being Muslim and their mother not being was not one which could be characterized as amounting to emotional injury under s17(1)(h). There was further the complete lack of factual foundation to the suggestion that there had been emotional injury as the children had not been with their mother for some time.

I thought it was plain and obvious. In mid January, the Magistrate disagreed with me (and in fairness to him, there were 2 non-Muslim advisors to the court). The step-mother was given custody. As a consequence, the custody order granted by the High Court was rendered valueless. The matter is pending review by the High Court in Shah Alam.

Was the Constitution adhered to? I do not think so. Was the decision in the best interests of the children? I cannot see how this could be so. It is a presumption in family law that a child’s interests are best secured by the child being with his or her natural mother. Section 17(1)(h) is a statutory exception to this general rule.

Case 2

On January 4th 2007, I appeared with Haris Ibrahim and Edmund Bon in the Federal Court. We were there for Haji Kahar who the media has described as the “self-styled Prophet of Selangor”.

Haji Kahar had been charged with several offences under the relevant Selangor Islamic Criminal Law Enactment and these were to be tried in the Syariah Courts. I have written elsewhere on this blog about the issues that arise (see the posting “Of Fatwas And Precepts”) and will not repeat myself here. Suffice it to say that there was a serious question of constitutionality going to the competence of the Selangor State Legislative Assembly to make the laws that were now being applied against Haji Kahar.

As has been explained in the “Fatwas” posting challenges of this nature are taken out directly in the Federal Court pursuant to a provision of the Constitution which specifically provides for challenges on grounds of legislative competence. The challenge is taken in 2 stages. In the first stage, the Federal Court must be shown that the applicant has legal standing (locus standi) and that there is an arguable case. The second stage is the substantive stage.

It is common for a single judge of the Federal Court to sit at the first stage. I appeared for Zaid Ibrahim in the challenges he mounted against Kelantan and Trengannu in connection with the Hudud (Islamic Criminal Law – prescribed offences) Enactments in both states. As I recall, a single judge sat for the leave hearings for both applications.

In 2005, similar questions had arisen in connection with the relevant Trengganu Islamic Criminal Law Enactment. As such, a similar challenge had been mounted by Sulaiman Takrib. Both Haris and I appeared for Sulaiman Takrib and obtained leave before a panel of the Federal Court, comprising Tun Fairuz (the current and then Chief Justice), Dato’ Richard Malanjum (the current Chief Judge Sabah & Sarawak) and Dato’ Alauddin Sharif in December 2005. The same judges heard the substantive phase in June 2006, shortly before Lina Joy.

As the Haji Kahar challenge was on similar footing (though different for having been filed in connection with Selangor laws), we got in touch with the Attorney General’s Chambers and came to an agreement. We would agree to the Government of Malaysia intervening (in effect, the Attorney General). Leave would be agreed to. There was nothing unusual about this as we had shown in the Sulaiman Takrib challenge that there were serious issues to be considered, issues which had yet to be determined even though about 6 months had lapsed since we argued the case.

You can imagine our surprise when we went to the Federal Court and discovered that 5 judges would be sitting to hear the leave application (Tun Fairuz, Dato’ Malanjum, Dato’ Augustin Paul, Dato’ Hashim Yusof and Dato’ Azmel). It was even more surprising that the bench insisted on being addressed on the issues. Submission took more than an hour and was, in my view, heavy going. A question was raised as to whether this was a matter which the syariah court ought be deliberating over, even though it was plainly a case concerning the competency of a law making body and a challenge which the Constitution clearly vests the Federal Court with jurisdiction to deal with. The syariah courts very clearly are not and cannot be empowered to adjudicate cases involving constitutional issues (see the report in The Sun on 5th January 2007). At one stage, one of the judges commented that the Attorney General’s Chambers should never have agreed to leave being granted.

Leave was ultimately granted. It was a struggle though, one we did not expect. The substantive phase will be dealt with in due course. In the meanwhile, we are still awaiting the decisions in Sulaiman Takrib and Lina Joy.

Case 3

On January 8th and 9th, I appeared for Subashini in her now notorious appeal. Haris and Shanmuga appeared with me. The case is fairly straight forward. Subashini is a Hindhu. She has two children. Her husband converted to Islam and indicated that he was going to convert their first child to Islam. She commenced proceedings in the High Court for a decree of divorce and consequential orders, including an order (common known as an injunction) to restrain her husband from converting their first born to Islam. It is beyond dispute that the High Court has jurisdiction to grant a decree of divorce and consequential orders. Unbeknownst to her, her husband unilaterally converted their first child into Islam. He also commenced proceedings in the syariah court for custody of the first child.

Fearing the possibilities, Subashini applied for an interim injunction to restrain her husband from converting their first child into Islam and to commence and carry on with proceedings in the syariah court.

In my view the syariah court has jurisdiction to grant decrees of divorce and make consequential orders, including those going to custody, in respect of marriages solemnized under Islamic law. It follows that the syariah court has no jurisdiction to grant such decrees or orders over marriages solemnized under civil law. Non-muslim marriages are solemnized under civil law. There is no issue at all here and the relevant law was clarified by the Supreme Court (as it was formerly known) in a case referred to as Tang Sung Moi.

The argument, in essence, made by Subashini was that any proceeding commenced in the syariah court would be a proceeding without proper foundation in law and therefore an abuse of process. More so for the fact that such proceedings would be positioned in ‘competition’ to the High Court proceedings. The High Court proceedings being correct in law (from a jurisdictional standpoint), and the law being as it is, the syariah court has no power to make any order. The question arises therefore why would any proceedings be commenced in the syariah court at all.

The decision of the Court of Appeal (delivered last week) is an incredible one. By a majority decision, 2 to 1 (Suryadi J and Hassan Lah J as againt Gopal Sri Ram J), the Court of Appeal ruled that the syariah court had jurisdiction and as such there was no basis in law for the High Court to grant an injunction. In a far reaching (and in my view completely unfounded) step, 1 of the majority judges ruled that Subashini ought have petitioned the syariah Court of Appeal to argue that the proceedings in the syariah court were jurisdictionally deficient. This was despite the Constitution limiting the jurisdiction of the syariah courts to persons professing the religion of Islam. No reference was made, however, to the Constitutional limitation.

It is significant that neither of the 2 majority decisions refers to Tang Sung Moi nor questions or considers the validity and effect of the provision of law that allows a non-Muslim party to a marriage to petition the High Court for a decree of divorce. In highly technical decisions, both the majority decisions reject Subashini’s right to apply for a preservation of status quo. 1 of the 2 judges quotes from the Quran to emphasise the fairness of the syariah law in an attempt at consolation (please read the judgments for their full term and effect).

It is equally significant that the minority judgment is a careful and meticulous analysis of the constitutional framework and the inter-relation between the civil and syariah courts. In my view it is the strongest judgment yet on the subject.

I cannot begin to understand how to justify the position taken by the majority. All that remains for Subashini is the Federal Court.

Article 11, the coalition, launched its video series today. The videos are aimed at clearing the air about what the coalition stands for and what its objectives are. At the moment, there are 3 videos: a dialogue in English with key coalitions members, a dialogue in Malay with other key members and a dialogue (in Malay) about the role of Islam in governance. The videos will be available for viewing shortly on prominent internet portals and sites. For further details, please go to www.article11.org. The website also has an FAQ about the coalition and its activities.

It is worth underscoring that Article 11 stands for what all of us as Malaysians should be standing for. A just and compassionate society in which the interests of all are equally protected through an unbiased and objective adherence to the Rule of Law. For those of you who have doubts, let me set out here the mission and objective of Article 11 (as is set out in its website):

“Mission Statement

Our mission is to ensure a Malaysia that:

upholds the supremacy of the Federal Constitution;

protects every person equally, regardless of religion, race, descent, place of birth or gender; and

is firmly established in, and upholds, the rule of law.

Objectives

We aim to promote awareness towards, advocate for, and contribute to achieving a Malaysia where all Malaysians in our daily lives:

affirm the Federal Constitution as the supreme law of the land;

strive to build national unity;

affirm the right of every person to full and adequate access to justice;

recognise the need for a judiciary that is impartial, independent and an equal arm of the government;

recognise that the Federal Constitution embodies an agreement among the various communities;

respect the Constitutional guarantees of equal protection for every person in a multi-racial, multi-religious Malaysia;

seek to protect fundamental liberties for all;

respect the freedom of thought, conscience, belief and religion of every person; and

ensure that Malaysia does not become a theocratic state.”

The mission and objectives of Article 11 are not inconsistent with Islam. On the contrary, they go far in attempting to ensure that the core Islamic values of justice and righteousness are adhered to and applied. How is it Islamic to leave any person – muslim or otherwise – without recourse? How is it Islamic to apply the law tactically to deprive a person of legitimate rights of access to justice? Islam does not only offer justice and fairness to Muslims. It does not create a monopoly over these values for Muslims. Any suggestion to the contrary is an insult to the religion. Any application of the law to that end misrepresents Islam as a religion that enjoins unfairness, injustice and oppression.

Article 11 promotes the Constitution. In doing so, it accepts the Constitutional declaration that “Islam is the religion of the Federation” (Article 3(1)). It also accepts the Constitutional declaration that “all other religions may be practiced in peace and harmony” (Article 3(1)). There have been many lies about the coalition and its supposed efforts to reject Islam as the religion of Federation. I question the motives of those who have misrepresented the efforts of the coalition. I challenge them to prove that Article 11 has done what it is they say.

It is the Constitution that protects us all, Muslims or otherwise. It is the Constitution that guarantees Muslims the freedom to be Muslims. It is the Constitution that guarantees a Malay Muslim the freedom to practice Islam in the way a Shafee Muslims would. It is the Constitution that allows a Malay Muslim to reject any compulsion to practice Islam other than as a Shafee. But if one accepts that along with the madzhab Shafee, there are other recognized schools of thought, or madzhabs, within the Sunni grouping of Muslims, we must also recognize that the Constitution equally protects the rights of Muslims to practice Islam in accordance with the principles declared by these other madzhabs. Muslims from the Indian sub-continent are more usually Hanafis.

Islam cherishes diversity. In our uniqueness as humans, diverse as we are, we celebrate the Creator. Islam is not monolithic. To attempt to define Islam in a limiting way is to attempt to limit God.

The Constitution protects that diversity. Not only within the religion of Islam but also outside it. It protects the rights of all persons in religion, faith and conscience. It guarantees that all of us are equal in law and before the law; that no one can be discriminated against on grounds of ethnicity, religion and gender. In this way justice is ensured for all. And just because the Constitution is not replete with Islamic terminology, this is no reason to condemn it as being unIslamic or anti-Islamic. Labels only go to form. More importantly, justice is not justice unless it is seen as being impartial. Fairness cannot be created from bias, in fact or in perception. Justice must not only be done but must be seen to be done. The Constitution exemplifies this principle.

So, I believe that in promoting the Constitution and the objective, detached justice it offers to us all, Article 11 is in fact promoting the universality that is an essential aspect of all faiths, religions and ways of life, including Islam.

And that is why it continues with its efforts to highlight those very disturbing trends that have developed in recent times. Can you blame Article 11 for doing so? I think not. To turn its back on the issue would mean turning its back on the very unjust and unfair treatment of individuals such as the widow of Murthi, Shamala, more recently Subashini and all those in similar positions.

The reality is that these individuals have been wronged by a system that was conceived to protect individuals like them but which has been misapplied to contrary ends in recent times. They have been treated unfairly and oppressively. Regretfully, Islam (as represented by the syariah courts and their purportedly exclusive jurisdiction) has been invoked to justify the treatment of these individuals and others like them. In this way, Islam is being given a bad name

The situation that has developed is a grave one. It is a situation that is dividing the nation more and more as the flaws in reasoning get more entrenched. I say flaws because the Murthi or Shamala or Subashini scenario is a recent one. We have been independent since 1957 and Article 121(1A) - the Constitutional provision that introduced the jurisdictional divide between civil and syariah courts - came into play in 1988. One would have thought that the problems would have surfaced much earlier. They did not. Shamala, the first in the series as far as I know, came to court only in 2004.

Why now and not before?

This is what Article 11 has been attempting to grapple with and highlight. If the system worked before, then something must be wrong with the way it is being applied now. The resultant injustice is reason enough for all of us to study the situation and attempt to solve it. Recent developments are tearing apart this nation, ironically in the name of the Constitution.

In this way, the efforts of Article 11 are aimed at ensuring that this country remains united and that the assurance of the Prime Minister of “1 county, 1 system” is borne out.

Article 11 is a nation building effort. It is an effort which all of us should align with. It is not an effort that belongs to the organizations and individuals behind the coalition. It is an effort that all of us are stakeholders in.

Help Article 11. Help Malaysia. Disseminate correct information about the initiative, consider the issues it is dealing with, communicate your understanding to others. The situation developing is serious enough for all of us to be concerned about, irrespective of faith.